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Penalty

IN GENERAL 

Agency is not required to retain appellant - whose duties included testifying in court and who was terminated after her shoplifting charge - based on her speculation that the Colorado Supreme Court could overturn its decision to allow impeachment of a witness who was charged with shoplifting. In re Redacted, CSB 57-11A, 3 (12/20/12), citing People v. Segovia, 196 P.3d 1126 (Colo. 2008).  

Agency termination of supervisor was appropriate where her acquisition of free equipment replacements in violation of its contract with vendor damaged its relationship with vendor, her actions placed a subordinate’s career in jeopardy, and she failed to take any responsibility for her actions. In re Roybal, CSA 60-11, 11 (3/13/12).

Agency termination of appellant was appropriate despite her exemplary past performance where the severity of her violations and failure to acknowledge any wrongdoing did not require it to assess a lesser penalty. In re Roybal, CSA 60-11, 10-11 (3/13/12). 

A hearing officer is not to disturb the Agency’s determination of the severity of the discipline unless it is clearly excessive or based substantially on considerations which are not supported by a preponderance of the evidence. In re Weeks, CSB 26-09A (12/23/09), citing In re Vigil, CSA 110-05 (3/3/06), rev’d on other grounds City and County of Denver v. Weeks, 2010CV545 (6/21/10). 

In the case of a termination, the deciding official must determine that no lesser discipline would "achieve the desired behavior or performance." In re Morgan, CSA 63-08, 18 (4/6/09); CSR 16-20 [now 16-41].

The agency bears the burden to prove that its imposition of discipline was appropriate under the CSRs, and that the level imposed was within the range that could be issued by a reasonable administrator. In re Morgan, CSA 63-08, 9 (4/6/09).

Agency's prior discipline, when considered as part of the same series of current offenses, impermissibly subjects appellant to double discipline for such prior acts. In re Morgan, CSA 63-08, 18 (4/6/09).

The agency fulfills the corrective purpose of discipline when it tailors the penalty to the nature and circumstances of the misconduct and the employee’s past disciplinary history. In re Rogers, CSA 57-07, 7 (3/18/08).

An employee’s steadfast refusal to acknowledge a need for improvement despite numerous mistakes and an extensive disciplinary history justified dismissal. In re Rogers, CSA 57-07, 7 (3/18/08), citing In re Diaz, CSB 72-06A, 3 (5/17/07). 

Agency’s termination of a deputy sheriff who continued to deny wrongdoing in the face of strong evidence to the contrary was proper. In re Rogers, CSA 57-07, 7-8 (3/18/08), citing In re Simpleman, CSA 31-06, 10-11 (10/20/06), aff’d In re Simpleman, CSB 31-06A (8/2/07).

Employee’s failure to correct behavior after previous discipline may be considered in determining the appropriate penalty for later offenses. In re Feltes, CSA 50-06, 7 (11/24/06).  

Hearing officer will not disturb an agency’s disciplinary determination unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of evidence. In re Delmonico, CSA 53-06, 8 (10/26/06).

An order requiring remedial training is not a disciplinary action as defined in the CSRs. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former CSR 16-20). 

Discipline must be reasonably related to the seriousness of the offense, and appropriate to correct the situation and achieve the desired change in behavior or performance. In re Diaz, CSA 92-05, 10 (1/31/06) (decided under former CSR 16-10).

In determining whether the discipline is within the range of reasonable alternatives available to a reasonable, prudent administrator, the hearing officer will not disturb the agency’s determination of the severity of discipline unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of the evidence. In re Garcia, CSA 175-04, 8 (7/12/05), citing In re Armbruster, CSB 377-01A (3/22/02).

Past discipline that is not reversed on appeal is presumed valid. In re Garcia, CSA 175-04, 8 (7/12/05).

FOUND 

A two-day suspension is not excessive where appellant's behavior had not improved after previous suspension for insults, threats, a PIP for negative interactions, recurring attendance issues and repeated corrective measures. In re Williams, CSA 53-08, 6 (12/19/08).  

Forty-five-day suspension of deputy sheriff was sustained for slapping fellow officer hard on the buttocks and dishonesty during investigation where appellant had prior violation for dishonesty, in violation of a core directive of the agency. In re Rogers, CSA 57-07, 8 (3/18/08).

Agency’s three-day suspension of prosecutor was not excessive where he violated the good order and effectiveness of the agency by knowingly facilitating prosecutor-shopping after warning, and failing to correct an inaccurate statement to his manager. In re Stone, CSA 70-07, 12 (2/25/08).   

Agency’s three-day suspension of contract administrator was necessary to emphasize that communication with management was of vital importance to his job where his plan required him to inform his supervisor of the status of ongoing projects, but he continued to believe his actions were impliedly authorized and that he did not violate the plan despite evidence to the contrary. In re Hill, CSA 69-07, 7 (1/23/08).

Agency’s termination of recreation supervisor was warranted where he endangered a vulnerable minor employee by drinking alcohol with her in closed recreation center on three occasions, and was dishonest during investigation. In re Rivas, CSA 49-07, 14 (1/9/08).

Thirty-day suspension of appellant was not excessive for fighting with co-worker, despite lesser discipline for co-worker, when appellant escalated an incident involving teasing into a physical confrontation resulting in injuries to co-worker, but his otherwise clear record, and recommendations from supervisors prevented dismissal. In re Delmonico, CSA 53-06, 8 (10/26/06).   

Termination of deputy sheriff with long history of discipline including ongoing dishonesty, who continued to deny wrongdoing was reasonable under CSRs. In re Simpleman, CSA 31-06, 10-11 (10/20/06), aff’d In re Simpleman, CSB 31-06A (8/2/07).

Thirty-day suspension was appropriate for deputy sheriff who asked for special treatment based on his position when arrested while off duty at a bowling alley for incident arising from his failure to pay for beer. In re Mergl, CSA 131-05, 9 (3/13/06) (decided under former CSR 16-10).

Agency did not punish appellant twice for the same absences because of its regulation’s imposition of increasing punishment for each additional unscheduled absence after eight absences in a year. In re Garcia, CSA 123-05, 6 (2/27/06).

Agency’s five-day suspension of appellant based upon her absences over its average was within the range of penalties that may be applied by a reasonable manager. In re Garcia, CSA 123-05, 6 (2/27/06).

Agency’s five-day suspension of appellant was appropriate for unauthorized absences after it had given her ample notice of the seriousness of her absenteeism in the form of stricter attendance expectations, and previously disciplined her for the same misconduct. In re Edwards, CSA 21-05, 7-8 (2/22/06).

Two-week suspension was appropriate when previous shorter suspension did not correct similar past behavior and performance deficiencies. In re Diaz, CSA 92-05, 11 (1/31/06) (decided under former CSR 16-10).

Agency’s three-day suspension of appellant/zookeeper was well within range of reasonable alternatives available to it agency where he allowed dangerous animals into close proximity, one of the most serious violations at the zoo, he failed to acknowledge responsibility for the misconduct, and had been recently disciplined for similar conduct. In re Owoeye, CSA 11-05, 8 (6/10/05).

NOT FOUND 

In view of appellant's three minor violations occurring within two days, indicating a pattern, his work record was exemplary, and the agency’s prerogative to set and enforce its work rules, twenty-day suspension was appropriately reduced to five days. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 21 (12/15/08).

CSB reinstated 90-day suspension where, by showing high school intern pornography on city computer, appellant violated agency internet policy and failed to maintain satisfactory work relationships, his second violation of that rule. In re Strasser, CSB 44-07A, 3 (2/29/08).

 
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